The governing body is authorized and directed from time to time at the request of the subdivider or his successors in interest to release from the bonds, release from the escrow agreement, and release from the burdens of the covenant and lien the estimated costs of the improvements installed and approved by the city engineer.
A. Applications For Partial Release:
1. At least ten (10) days before each partial release is required (but not more often than once a month), the subdivider will submit to the city engineer for review, the application for release, filled out and signed by the subdivider covering the work completed as of the date of the application and supported by such data as the city engineer may reasonably require. The subdivider shall include with his application for release of funds a written statement of the current status of the escrow account signed by an officer of the bonding company, the escrow agent or the institution issuing the letter of credit. The statement shall show the total dollars included in the agreement, the date and the amount of the releases and the current funds.
2. The subdivider warrants and guarantees that title to all work, materials and equipment covered by an application for release, whether incorporated in the work or not, will have passed to the city prior to the making of the application, free and clear of all liens, claims, security interest and encumbrances; and that no work, materials or equipment covered by an application for release will have been acquired by the subdivider or by any other person performing the work at the site or furnishing materials and equipment for the project.
3. The city engineer will, within ten (10) days after receipt of each application for release, either indicate, in writing, his approval of release and present the application to the city or return the application to the subdivider, indicating, in writing, his reasons for refusing to approve release. In the latter case, the subdivider may make the necessary corrections and resubmit the application. The city will, within ten (10) days of presentation to it of an approved application for release, release the amount approved by the city engineer.
B. Approval Of Requested Payment: The city engineer's approval of any requested release shall constitute a representation by him to the city, based on the city engineer's on site observations of the work in progress as an experienced and qualified design professional and on his review of the application for release and the supporting data, that the work has progressed to the point indicated; that, to the best of his knowledge, information and belief, the quality of the work is in accordance with the construction standards (subject to an evaluation of the work as a functioning project upon substantial completion, to the results of any subsequent test for in the construction standards and any qualifications stated in his approval); and that the subdivider is entitled to a release of the amount approved. However, by approving any such payment, the city engineer shall not thereby be deemed to have represented that he made exhaustive or continuous on site inspections to check the quality or quantity of the work or that he has reviewed the means, methods, techniques, sequences and procedures of construction, or that he has made any examination to ascertain how or for what purpose the subdivider has used the monies released.
C. Refusal To Release: The city engineer may refuse to approve the whole or any part of any release if, in his opinion, he is unable to make such foregoing representation to the city. He may also refuse to approve any such release, or because of subsequently discovered evidence, or the results of subsequent inspections or tests, nullify any such release previously approved, to such extent as may be necessary in his opinion to protect the city from loss, because:
1. The work is defective;
2. Claims have been filed or there is reasonable evidence indicating the probable filing thereof;
3. The city has been required to correct defective work or complete the work; or
4. Unsatisfactory prosecution of the work, including failure to clean up as required.
D. Maximum Percentage Of Release: The subdivider shall not obtain a release from the bonds, or withdraw from the covenant and lien improvements guarantee any amount in excess of one hundred percent (100%) of the estimated cost of the improvements, but shall pay from other sources any costs for such improvements which exceed one hundred percent (100%) of the costs approved by the city engineer.
E. Installation Prior To Final Plat Approval: If the subdivider installs any or all of the required improvements prior to the final plat approval, the subdivider shall furnish the city one of the three (3) guarantees listed in subsection 10-3-12A2 of this chapter at the time the final plat is approved, in an amount equal to fifteen percent (15%) of the cost of the improvements as a guarantee that the improvements, as installed, shall remain free from defects and shall be maintained by the subdivider until final acceptance by the governing body.
F. Hold Of Fifteen Percent:
1. If the subdivider furnishes a bond, an escrow or letter of credit, the governing body shall hold the remaining fifteen percent (15%) as a guarantee that the improvements, as installed, shall remain free from defects and shall be maintained by the subdivider until final acceptance by the governing body.
2. If the fifteen percent (15%) retainage is in the form of money deposited in an escrow account, release of said retained funds may be effected by the subdivider, providing the subdivider files a bond, or furnishes an irrevocable letter of credit with the governing body in an amount equal to the fifteen percent (15%) being retained.
G. Defective Improvements: At any time during the guarantee period and in the event the required improvements are not installed within the two (2) years provided, or are not being maintained during the guarantee period, after conditional acceptance, or are found to have latent defects, the city engineer shall, by written notice, advise the subdivider has thirty (30) days to make the necessary installation, construction, repair or replacement, which time may be extended by the governing body at its sole discretion, and that the city will make the necessary installation, construction, repair or replacement if the subdivider does not do so within the time permitted and that the city will exercise its rights, as contained in the agreement, to obtain the funds and/or pay for the installation, construction, repair or replacement of the required improvements. If, after one year after the city has conditionally accepted the improvements required by its title, the required improvements remain substantially free from latent defects, the governing body may release to the subdivider the balance of the bonds, escrow account and/or letter of credit. This release and any prior approval of the city engineer shall not relieve the subdivider of any of his responsibilities as required by this title, which includes guaranteeing the improvements for a total of two (2) years from the date of conditional acceptance. (Ord., 2-29-1996)